Curtin v University of New South Wales (No. 3)

[2008] NSWSC 1255

CITATION:	Curtin v University of New South Wales (No. 3) [2008] NSWSC 1255
HEARING DATE(S):	7 November 2008
JUDGMENT DATE :	27 November 2008
JUDGMENT OF:	Johnson J at 1
DECISION:	The Plaintiff’s application for an extension of time to appeal from the decision of Malpass AsJ on 13 June 2008 is refused.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for extension of time to appeal from decision of Associate Judge summarily dismissing certain claims - Plaintiff determined not to appeal from decision but to replead - Defendants move to strike out parts of amended pleading - motion heard by Judge - Plaintiff then decides to appeal from decision of Associate Judge before decision announced on strike-out motion - whether extension of time ought be granted to allow appeal to be brought - extension of time refused
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Fair Trading Act 1987 Contracts Review Act 1980 Supreme Court Act 1970 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Curtin v University of New South Wales and Ors [2008] NSWSC 586 Curtin v University of New South Wales (No. 1) [2008] NSWSC 1234 Curtin v University of New South Wales (No. 2) [2008] NSWSC 1236 Gallo v Dawson (1990) 93 ALR 479 Maitland v Nationwide News Pty Limited [2004] NSWCA 155 Tomko v Palasty (No. 2) [2007] NSWCA 369 Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 McCormick v Riverwood International Australia Pty Limited [1999] FCA 1640 Pell v Hodges [2007] NSWCA 234 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 1 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
PARTIES:	Peter John Curtin (Plaintiff) University of New South Wales (First Defendant) New South Global Pty Limited (Second Defendant) John Ingleson (Third Defendant) Alan Bowen-James (Fourth Defendant) Cognitive Systems Pty Limited (Fifth Defendant)
FILE NUMBER(S):	SC 20342/07
COUNSEL:	Mr PE King (Plaintiff) Mr MA Izzo (First, Second and Third Defendants)
SOLICITORS:	Russell McLelland Brown (Plaintiff) Sparke Helmore (First, Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

27 November 2008

20342/07 Peter John Curtin v University of New South Wales and Ors (No. 3)

JUDGMENT (on application by Plaintiff for extension of time to appeal from decision of Malpass AsJ dated 13 June 2008)

1 JOHNSON J: By Notice of Motion filed 4 September 2008, the Plaintiff, Peter John Curtin, applies for an extension of time to appeal from a decision of Malpass AsJ dated 13 June 2008 (Curtin v University of New South Wales and Ors [2008] NSWSC 586).

2 The application to extend time is opposed by the First, Second and Third Defendants, being the University of New South Wales, New South Wales Global Pty Limited and John Ingleson.

3 The Plaintiff has also sued two other parties, the Fourth and Fifth Defendants, being Alan Bowen-James and Cognitive Systems Pty Limited. They are not parties to the present motion as the issues raised by it do not affect them. In this judgment, for convenience, I will refer to the First, Second and Third Defendants as “the Defendants”.

4 It is not usual that substantial debate will occur where the sole issue to be determined is an application for extension of time to appeal. However, the circumstances of this case are such that there has been significant argument on this question arising from events which have occurred since 13 June 2008.

Evidence on Application

5 The Plaintiff read the affidavit of Michael Rodney Lewis sworn 5 November 2008. The Defendants read the affidavit of Rhiannon Kate Eagles sworn 29 October 2008 and tendered a bundle of documents (Exhibit RKE1). Neither deponent was required for cross-examination.

Factual Matters Relevant to Application

6 The Plaintiff had been an employee of the First Defendant as Operations Manager of its Educational Testing Centre. This employment was terminated and he accepted employment with the Second Defendant as Services Manager for a period of three years from 12 October 2001. The Second Defendant undertook a workplace change process and advised the Plaintiff that his position had been declared redundant. The Plaintiff elected to take retrenchment and a Deed of Release was executed on 2 December 2003.

7 On 2 October 2007, the Plaintiff commenced proceedings by the filing of a Statement of Claim arising from his employment with the First and Second Defendants, and the termination of that employment by execution of the Deed of Release.

8 The Statement of Claim sought orders setting aside the Deed of Release, together with damages. Various causes of action were pleaded, including general law claims for breach of contract, negligence, negligent misstatement, misfeasance in public office and conspiracy as well as statutory claims alleging contravention of the Trade Practices Act 1974 (Cth) (“TPA”), the Fair Trading Act 1987 (NSW) (“FTA”) and the Contracts Review Act 1980 (NSW) (“CRA”).

9 On 10 and 11 June 2008, Malpass AsJ heard an application by the Defendants to summarily dismiss or strike out parts of the Statement of Claim, including paragraphs which claimed relief under the TPA, FTA and CRA. On 13 June 2008, Malpass AsJ delivered judgment and made orders summarily dismissing the Plaintiff’s claims for relief pursuant to the TPA, FTA and the CRA: Curtin v University of New South Wales [2008] NSWSC 586 at [54], [55] and [61]. His Honour indicated that deficiencies in the Plaintiff’s claims for negligence and misfeasance in public office were better addressed by amending the pleading than by summary dismissal: Curtin v University of New South Wales at [57] and [59].

10 On 20 June 2008, a Registrar made consent orders which included an order that the Plaintiff have leave to file and serve a verified Further Amended Statement of Claim by 4 July 2008.

11 On 11 July 2008, the Plaintiff filed an Amended Statement of Claim which was served on the Defendants under cover of a letter dated 17 July 2008.

12 The time for bringing an appeal as of right from the decision of Malpass AsJ expired on 14 July 2008: rule 49.8 Uniform Civil Procedure Rules 2005 (“UCPR”).

13 By letter dated 21 July 2008, the Defendants’ solicitor complained of the inclusion in the Amended Statement of Claim of claims under the TPA and FTA , contending that this was a replication of what had been dealt with by Malpass AsJ. The letter foreshadowed that, if the Plaintiff pressed the amended pleading in its then form, application would be made to the Court to strike out the offending paragraphs and that, if such an application was brought, reliance would be placed upon the letter of 21 July 2008 in support of an application that the Plaintiff pay the Defendants’ costs of the application forthwith and on an indemnity basis.

14 The Plaintiff’s solicitor responded by letter dated 22 July 2008, disputing the assertion that the controversial paragraphs in the amended pleading re-agitated claims already dismissed. The Plaintiff’s solicitor contended that these were, in effect, fresh claims.

15 On 31 July 2008, the Defendants filed a Notice of Motion seeking to strike out the TPA and FTA claims referred to in their letter of 21 July 2008. On 14 August 2008, the Registrar fixed the Defendants’ Notice of Motion for hearing in the Progressive List as a two-hour matter before a Judge on 1 September 2008.

16 On 1 September 2008, the hearing of the Notice of Motion came before me as Duty Judge. Mr Andrew Bell SC and Mr Michael Izzo of counsel appeared for the Defendants at the hearing of the motion. Mr Peter King of counsel appeared for the Plaintiff. The hearing occupied some two-and-a-half hours. Written outlines of submissions were handed up by counsel for the Defendants and the Plaintiff.

17 At the conclusion of the hearing, I adjourned the matter until 10.00 am on 4 September 2008 for the purpose of giving oral judgment. The argument on 1 September 2008 proceeded upon the basis of the correctness of the decision of Malpass AsJ. No application was foreshadowed or made by the Plaintiff to appeal from the decision of Malpass AsJ.

18 Late in the afternoon of 2 September 2008, the Plaintiff’s solicitors wrote to the Defendants’ solicitors in the following terms:

“We propose to apply to Johnson J to defer ruling on 4 September 2008 on your clients’ recent notice of motion to strike out, and for the court to consider with that application an appeal from the decision of Malpass AsJ referred to in argument on 1 September 2008.
Please advise by 2.00 pm tomorrow whether you agree to us contacting the Associate to the judge to give notice of the application, failing which we shall file a Motion to that effect.”

19 On 3 September 2008, the Defendants’ solicitors responded in the following terms:

“We refer to your fax dated 2 September 2008.
Our clients do not agree to a deferral of the ruling by his Honour Justice Johnson on our client’s Notice of Motion filed 31 July 2008. As you are aware, the hearing of our motion was fully argued before the Court on Monday, 1 September 2008, and that hearing is now complete. We submit that it is appropriate for his Honour to deliver his judgment on Thursday, 4 September 2008.
If your client now wishes to file an application seeking leave from the Court to file an appeal out of time, it should do so in the usual way.
As you are aware, Mr Bell SC informed the Court at the end of the hearing on Monday, 1 September 2008, that neither he or Mr Izzo are available to appear in Court tomorrow. We also note that our Mr Bell SC is unavailable until the end of October 2008.”

20 At about 4.30 pm on 3 September 2008, the Plaintiff’s solicitors wrote to the Defendants’ solicitors as follows:

“We refer to your letter dated 3 September 2008.
With a view to saving court time and costs, we propose that the Court should order written submissions on the appeal question, and then give judgment on both motions without any further oral hearing, bearing in mind the similarity of issues.
Alternatively we propose that the Court list the two motions together for further oral hearing. Please ensure your preferred counsel’s dates are available.”

21 At about the same time, the Plaintiff’s solicitor faxed a letter to my Associate in the following terms:

“In this matter we give notice that the Plaintiff tomorrow will ask the Court to defer ruling on the Defendant’s motion on 4 September 2008 with a view to hearing an application in relation to the matter, in the interests of the cheap quick and just disposal of the issues presently before the Court.
We have requested in accordance with practice the consent of Messrs Sparke Helmore to this course before writing to you. That request in respect of the proposed course has not been agreed to. Accordingly we now write to give notice of the application to his Honour.”

22 Later on the afternoon of 3 September 2008, a facsimile was sent to my Associate by the Defendants’ solicitors which included the following:

“As indicated in our fax dated 3 September 2008, our clients oppose the proposed course now being sought by the plaintiff. We also disagree that a request of the proposed course is ‘ in accordance with practice ’.
The plaintiff has not made any application to the Court seeking leave to appeal the decision of Malpass AsJ delivered on 13 June 2008. We also note that the plaintiff is out of time to make such an appeal, and that any application seeking an extension of time, if made, would be opposed by our clients.
Our clients’ Notice of Motion filed 31 July 2008 was fully argued before his Honour on Monday, 1 September 2008 and that hearing is now complete. We submit that it is appropriate for his Honour to deliver his oral judgment, as previously indicated, at the listing of the proceedings at 10am tomorrow.”

23 On the morning of 4 September 2008, the Plaintiff filed a Notice of Motion seeking to appeal from the decision of Malpass AsJ and seeking an extension of time within which to bring the appeal. No supporting affidavit was filed with the motion. Upon the Court convening on 4 September 2008, Mr King sought an adjournment upon the basis communicated in the correspondence. He confirmed that he had not spoken to opposing counsel concerning the Plaintiff’s application.

24 Ms Bennett, solicitor for the Defendants, opposed the adjournment application and submitted that the Court should proceed to deliver judgment on the matters which had been argued on 1 September 2008.

25 I declined to grant the Plaintiff’s application for an adjournment and deferral of delivery of my reasons: Curtin v University of New South Wales (No. 1) [2008] NSWSC 1234.

26 In the course of that judgment, I said at [8]-[10]:

“8. Mr King has invoked s 56 Civil Procedure Act 2005. He submits that the just, quick and cheap resolution of the real issues in the proceedings will be advanced by deferring my ruling and putting in train a protocol for a hearing, whether by way of written submissions or a further oral hearing, so that I can consider, assuming there is an extension of time granted to appeal from the decision of Malpass AsJ, all issues at the one time.

9. It is difficult to understand how the Plaintiff could have only come to consider, as Mr King assures me is the case, the bringing of an appeal from the decision of Malpass AsJ since the hearing on 1 September 2008. The time to appeal as of right expired in mid-July. If the Plaintiff was complying with his obligation under s 56 Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of all issues in dispute, then the step that is now taken would have been taken prior to the hearing last Monday.

10. If that had happened, there may well have been a real question as to whether the hearing would have proceeded at all before me, sitting as Duty Judge and dealing with matters with a two-hour limit, although, as I have observed, the hearing of this matter exceeded that length. It seems to me that s 56 Civil Procedure Act 2005 does not, at this point, assist the Plaintiff but rather points in favour of me proceeding to give judgment on the matter for decision.”

27 Thereafter, I gave judgment with respect to the Defendants’ application to strike out parts of the Amended Statement of Claim: Curtin v University of New South Wales (No. 2) [2008] NSWSC 1236. I struck out the challenged parts of the amended pleading, principally upon the ground that they constituted an abuse of process. In view of the outcome of the motion and the Defendants’ foreshadowed application in a letter of 21 July 2008 with respect to costs, I acceded to the Defendants’ application and ordered the Plaintiff to pay the Defendants’ costs on an indemnity basis forthwith (at [53]-[61]).

28 Thereafter, Mr King raised the question of the Plaintiff having a further opportunity to replead certain parts of the claim. Given earlier experience in the litigation, I determined that the Plaintiff ought prepare a proposed further amended pleading to be served upon the Defendants to permit an assessment to be made as to whether the amendments would be opposed. Mr King requested that the matter remain with me given my familiarity with the issues. At the conclusion of the hearing, I said (T13.18):

“HIS HONOUR: It is sufficient to note that the matter is next before the Registrar on 8 September but with respect to the plaintiff’s application to re-plead with respect to paras 24E(a) to (c) and 24K(d), (g,) (h) and (i), that as I am familiar with the issues as a result of the proceedings I have heard, I will stand over that aspect before me to 9.30 on Friday 19 September 2008 and direct the plaintiff to serve on the defendants’ solicitors, and to provide my associate at the same time, a copy of the proposed pleading with respect to those paragraphs by 4 pm on 15 September 2008.

I give directions in the terms I have just identified.”

29 On 11 September 2008, the Plaintiff’s solicitor served a proposed Further Amended Statement of Claim. In the same letter to the Defendants’ solicitors, the Plaintiff’s solicitor suggested that “the issues concerning the appeal from Malpass AsJ” be deferred (page 27, Exhibit RKE1).

30 The matter came before me again on 19 September 2008. Mr Izzo of counsel informed the Court that the Defendants objected to the amendments (bar one) proposed in the Further Amended Statement of Claim (T2.31, 19 September 2008). During the course of discussion concerning what directions ought next be made, I asked counsel for the Plaintiff (T4.27):

“HIS HONOUR: Could I just ask you this, Mr King: The application for leave to appeal against the decision of Associate Justice Malpass, is that proceeding?

KING: No, your Honour. We really have just done that as a fallback or cautionary-

HIS HONOUR: I understood that but, I suppose, if that was going to be argued somewhere then that in a sense affects where things are at but if it's not going to be pressed then the proceedings are up to where they are up to and it's a question of where it goes from here.

KING: If we can get some clarity from the plaintiffs point of view as to-

HIS HONOUR: From the defendants' point of view, from the other side's point of view-

KING: As to where they stand in relation to these proposed amendments, it's our respectful submission that we've observed the directions that your Honour has given but, of course, my friend is entitled to agitate that. I can't stop them doing that. Our position is really on hold. If none of these amendments are allowed, I suppose, we then really have to look seriously at pressing both an appeal from the Master and from your Honour but we don't propose to press any appeal from the learned Associate Justice if we can at least have the principal concerns that the plaintiff has aired in the proceedings below.

What I have in mind is some recent comments of the High Court in relation to ensuring that the plaintiff doesn't leave behind issues which could not have been brought up on a final hearing in relation to an appeal. What I mean is in short this: That the rule that lack of success in an interlocutory issue can be taken up in a final appeal if that ever becomes necessary has been recently qualified by the High Court. So we may be forced in a position to do something unless we can get some clarification of what the defendants' position is."

31 To progress the matter with respect to the Plaintiff’s application to replead, I expressed the following intention (T8.39, 19 September 2008):

“What I am prepared to do is to give directions today that the first to third defendants file and serve written submissions with respect to their resistance to the application to amend the pleading by a certain date, and to direct that the plaintiff file and serve written submissions on the same issue by a certain date and to direct that the matter be listed before Registrar Bradford at a date after that which will allow Registrar Bradford to have the parties consider their written positions on those issues so that there can be an assessment of the nature and duration of any hearing which is going to take place.”

32 Mr King submitted that it would be desirable if the next phase of the litigation concerning the pleadings could be considered by me given my knowledge of the issues (T10, 19 September 2008).

33 Mr King had sought initially that the Notice of Motion seeking an extension of time to appeal from the decision of Malpass AsJ ought be stood over generally. After some discussion, I observed (T11.45):

“HIS HONOUR: Bearing in mind that what you wanted to do this morning was to stand it over generally, an order which doesn't have particular appeal to me at this stage, bearing in mind it seeks leave to appeal, the better course is it be stood over for directions. Clearly if it was to run it would have to be referred to someone who did have the jurisdiction to hear it, maybe at some time you may need to make a decision as to whether it ought be dismissed or-

KING: Yes, the appropriate order is it go over to the same directions hearing as Registrar Bradford.”

34 At the conclusion of proceedings on that day, I gave the following directions (T12.12):

“The first, second and third defendants are to file and serve by 4pm on 26 September 2008 written submissions with respect to their opposition to the plaintiffs application for leave to file a further amended Statement of Claim in the form provided to the Court under cover of a letter dated 11 September 2008. The plaintiff is to file and serve written submissions in reply on that issue by 4pm on 10 October 2008.

I list the matter for further directions before Registrar Bradford at 9am on 17 October 2008. I direct that the Notice of Motion filed 4 September 2008 seeking leave to appeal from the decision of Associate Justice Malpass dated 13 June 2008 be returnable before Registrar Bradford on 17 October 2008 and I vacate the existing order that that Notice of Motion be returnable before Registrar Kiang on 23 September 2008. I will liaise with Registrar Bradford to inform him of my involvement in this matter to date, so that when the time comes for allocation of a hearing date, he will in the first instance contact me to determine whether I am in a position to hear the matter given my involvement in the matter to date.”

35 On 26 September 2008, the Defendants’ solicitors served written submissions in relation to the proposed amended pleading.

36 On 10 October 2008, the Plaintiff’s solicitor served a written submission with respect to the proposed amended pleading. On the same day, the Plaintiff’s solicitor served upon the Defendants’ solicitor a sealed copy of a Notice of Intention to Appeal to the Court of Appeal from my decision of 4 September 2008.

37 Prior to the matter coming before the Registrar on 17 October 2008, there was a further exchange of correspondence between the solicitors for the parties. The Plaintiff foreshadowed an application for an adjournment due to the unavailability of counsel on 17 October 2008. The Defendants’ solicitor responded (on 14 October 2008) that an adjournment was unnecessary as it was their “understanding that the purpose of the directions hearing was for the court to allocate a hearing date regarding [the Plaintiff’s] application to replead” (page 61, Exhibit RKE1). The Plaintiff’s solicitor responded on 15 October 2008 indicating agreement to this course of action upon the basis that the amendment application, the appeal from Malpass AsJ and a subpoena issue be heard at the same time (page 62, Exhibit RKE1).

38 The Defendants’ solicitors responded on 15 October 2008 in a letter which included the following (page 63, Exhibit RKE1):

“Your client requires an extension of time within which to appeal from Malpass AsJ’s judgment. Given that your client’s Notice of Motion to appeal was not filed until 4 September 2008 (being 83 days after the material date) and after the hearing of our clients’ Notice of Motion filed on 31 July 2008 to strike-out amendments to the Amended Statement of Claim, we are instructed to object to such an extension being granted. In those circumstances, and in the interests of avoiding unnecessary costs, we consider that your client’s application for an extension for time should be dealt with separately to and in advance of the hearing of any appeal.
We also consider that if directions are to be made for the filing and service of written submissions in advance of the hearing of your client’s application for an extension of time, it is appropriate that your client as applicant file and serve written submissions first, and that our clients be given a period within which to file any submission in response.”

39 On 17 October 2008, the Plaintiff filed written submissions with respect to the application to appeal from the decision of Malpass AsJ. Mr King and Mr Izzo appeared before Registrar Bradford and, at the request of the parties, the matter was listed before me for directions on 22 October 2008.

40 On 22 October 2008, the Plaintiff submitted that the application for leave to amend the Statement of Claim and the application for an extension of time to appeal from Malpass AsJ ought be heard at the same time. Mr Izzo opposed this application, submitting that the application for an extension of time to appeal should be heard first. The following was said during the course of submissions concerning the future conduct of the proceedings (T3.50-T5.22, 22 October 2008):

“KING: We submit that both in consideration of convenience and fairness, suggest that the extension for time and the appeal should be heard together as the application for leave, they all relate to the same issues.

HIS HONOUR: That would involve a complete reopening, the parties would have to come to Court and the Court would have to be ready for a hearing that will throw open the whole matter, won't it? It would effectively put the matter back to 1 September 2008 when the matter was first before me as an application to strike out parts of the pleading with me now being called upon to consider one, the application for an extension of time on the appeal, two, the merits of the appeal and then those matters really having to be decided before one went anywhere near the application to amend the pleadings. Because the whole question of the state of the pleadings would depend upon what view one took of the appeal, if leave was granted.

Now, I raised with you on 4 September, Mr King, aspects about the timing of what was then proposed and aspects of section 56 of the Civil Procedure Act the just, quick and cheap resolution of the real issues in dispute and the fact that at that time I was being asked to adjourn the proceedings to effectively allow another hearing. Aren't we really in a similar position now? Isn't that what you are asking me to do?

KING: We think not, your Honour.”

41 After further submissions, I determined that the appropriate next step was to hear and decide the Plaintiff’s application for an extension of time to appeal from the decision of Malpass AsJ. I gave directions and fixed the application for hearing on 7 November 2008, when the application was argued and judgment reserved.

Evidence Explaining Delay in Bringing Appeal

42 In an affidavit sworn 5 November 2008, the Plaintiff’s solicitor, Mr Lewis, seeks to explain the approach of the Plaintiff following the decision of Malpass AsJ on 13 June 2008 and, in particular, the reason why no appeal was lodged from that decision. Mr Lewis was not cross-examined on his affidavit. Both counsel made submissions by reference to this evidence and it is appropriate to refer to it before moving to the submissions themselves.

43 Mr Lewis states that, after reading the judgment of Malpass AsJ, he arranged for the Plaintiff to meet with counsel in Sydney on 18 June 2008 to obtain advice concerning future action in the litigation (paragraph 4):

“4. In conference counsel expressed the view that the Fair Trading Act and Trade Practices Act [FTA/TPA] causes of action in respect of the Deed of Release [DOR] relied on by the Defendants as a complete defence were dismissed by the Court on the basis that the conduct alleged in the particulars was not able to be characterised as conduct in trade or commerce. He said that the relief sought was important because recent precedent illustrated that a DOR might be set aside under those statutes, and/or under the Contracts Review Act [CRA].”

44 Mr Lewis said (paragraph 7):

“7. Based on the foregoing considerations Counsel and I formed the view that there was a proper basis for the bringing of causes of action seeking relief under the FTA/TPA, as the proposed causes of action although relying in certain respects on similar representations to those previously pleaded were different causes of action from those dismissed by Malpass As J. He also referred to what he called the James Hardie provision, being UCP Act section 91, and noted that the orders of Malpass As J did not prevent a claim for the same relief. Accordingly it was both unnecessary and inappropriate to appeal but to amend, and to plead clearly that the cause of action arose in trade or commerce. If the Defendants again moved to strike out, and that was successful, then we should appeal . These views are reflected in paragraphs 24B and 24F of the Amended Statement of Claim forwarded for filing on 3 July 2008 with the Court. With respect to the CRA case Counsel's view was that it should be pleaded in reply once the Defendants pleaded the DOR, and depending on how they pleaded it, bearing in mind that Malpass As J had not favoured the Defendants' case on the construction or effect of the DOR. He indicated that once pleadings had closed the liberty to apply granted by Malpass As J with respect to the Plaintiffs notice of motion may if then appropriate be exercised, so that the DOR point may be addressed as a separate question.” (emphasis added)

45 With respect to steps taken on and after 21 July 2008, Mr Lewis stated at paragraphs 11-13:

“11. After receiving the letter of Messrs Sparke Helmore dated 21 July I forwarded letter dated 22 July consistent with the approach referred to above to Messrs Sparke Helmore. I note that by the time I received the Sparke Helmore letter the material date for appeal had passed.

12. On or about 1 September 2008 I was informed by Counsel following the hearing that day of the Defendants application to strike out the Amended Statement of Claim that Senior Counsel for the Defendants had handed up a detailed Written Submission to the Court that day, which the Court appeared to accept as correct, and that there was a risk that the Court would disagree with the interpretation of the effect of the Judgment of Malpass AsJ adopted by himself and I, such that the 13 June Judgment may preclude bringing any FTA/TPA cause of action at all, or any CRA cause of action no matter how pleaded or expressed and no matter what relief was sought under those statutes, including by a case in reply. Counsel then advised that in order to fully protect the interests of the Plaintiff, a notice of motion to appeal the Judgment of Malpass As J should be brought and if possible heard with the strike out so that the Court had before it all issues relating to the orders sought, or to be heard at some later time if that approach did not meet with the favour of the Court. I then immediately took steps to file the Notice of Motion dated 4 September 2008.

13. I say with respect that the reason for delay in not appealing the decision of Malpass As J between the end of the material date and 4 September [a delay of approximately 7 weeks and some days] that I proceeded on an assumption which I believed to be correct that the proper construction of the Judgment of Malpass As J meant that it was appropriate for the Plaintiff to amend and not appeal that Judgment, and that as soon as it appeared that the Court was of the view that this was mistaken I then took immediate steps to appeal the Judgment of 13 June 2008.”


Legal Principles on Application for Extension of Time to Appeal

46 It was common ground before me that an appeal from the decision of Malpass AsJ made on 13 June 2008 would lie to a single Judge of the Common Law Division, and not to the Court of Appeal. An appeal lies to the Supreme Court from any decision of an Associate Judge of the Supreme Court, except in any case where an appeal lies to the Court of Appeal: rule 49.4 UCPR. Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an Associate Judge, Registrar or other officer: s.104 Supreme Court Act 1970.

47 An appeal from a decision of an Associate Judge under r.49.4 is to be instituted by filing a notice of motion within 28 days after the material date: rule 49.8 UCPR. The Associate Judge may extend the time allowed under rule 49.8(2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise: rule 49.8(3) UCPR.

48 The Supreme Court may extend the time allowed under rule 49.8(2) at any time: rule 49.8(4) UCPR.

49 There are no specified criteria in rule 49 UCPR, or in the general case management provisions in ss.56-60 Civil Procedure Act 2005, for the exercise of the discretion to extend time for the institution of an appeal.

50 Both counsel referred to the principles with respect to extension of time to appeal stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:

“The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.’”

51 The Court of Appeal has summarised the principles applicable where an extension of time to appeal is sought under rule 51.16 UCPR.

52 In Maitland v Nationwide News Pty Limited [2004] NSWCA 155, McColl JA (Davies AJA agreeing) said at [16]-[17]:

“[16] In considering whether the discretion to extend time for leave to appeal ought be granted, the Court is concerned to determine whether strict compliance with the rules will ‘work an injustice’ upon the claimants: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. In Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 the Court of Appeal (Reynolds, Hutley and Bowen JJA) held that ‘where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time’.

[17] It is relevant to consider the prospects of success of the appeal. If it is clear that the appeal will fail in the sense that it is not ‘arguable’ or not ‘fairly arguable’, that may militate against granting an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at 529 [34] per Gummow and Hayne JJ (who dissented in the result but not in the principle to be applied in determining the outcome). It is also relevant to take into account the blamelessness of the party personally for the delay. The fault of a plaintiff’s solicitor in causing delay should not, as a matter of course, be attributed vicariously to the plaintiff: Stollznow v Calvert [1980] 2 NSWLR 749 at 753 per Moffitt P (with whom Hope and Mahoney JJA agreed).”

53 Basten JA said in Tomko v Palasty (No. 2) [2007] NSWCA 369 at [55]-[56]:

“[55] The approach to such an application requires acknowledgment of the proposition that ‘the respondent to the application has a vested right to retain the judgment’ which is proposed to be the subject of appeal: see Jackamarra v Krakouer (1998) 195 CLR 516 at [4] (Brennan CJ and McHugh J). In such cases, consideration must be given to four factors of general relevance, namely:

(1) the length of the delay;
(2) the reason for the delay;
(3) whether the applicant has a fairly arguable case, and
(4) the extent of any prejudice suffered by the respondent to the application:
see Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946, referred to with approval, in such a context, in Jackamarra at [6]–[7].

[56] Speaking more generally, Kirby J noted that there might be other factors relevant to the grant of an extension of time in particular cases. As his Honour stated, after reference to the factors identified in Palata Investments , at [66] (7):

‘But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.’”


Submissions of the Parties

The Plaintiff’s Submissions

54 Mr King addressed the Court by reference to the factors listed in Gallo v Dawson. With respect to the Plaintiff’s prospects of success on an appeal, Mr King identified at least three arguable grounds of appeal (not presently specified in the Notice of Motion):

(a) that Malpass AsJ erred in not holding that where misleading or deceptive conduct allegedly occurs in an employment or staffing context, it is a question for all the circumstances of the case whether the misconduct can be characterised as occurring “in trade or commerce” or not, or that his Honour wrongly characterised the conduct alleged and did not consider sufficiently the decisions in Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 and McCormick v Riverwood International Australia Pty Limited [1999] FCA 1640;

(b) that his Honour erred in striking out the CRA claim, when that statute has as its very focus remedies such as those sought here by the Plaintiff, namely setting aside the Deed of Release ab initio;

(c) that Malpass AsJ erred by not granting leave to replead, having regard to the fact that the matter before him was not a final hearing on the merits, but an interlocutory notice of motion by the Defendants, having regard to s.91 Civil Procedure Act 2005 .

55 Mr King submits that the Plaintiff has reasonable prospects of success on appeal on each of these grounds such that the proceeding would not be futile.

56 With respect to the history of the proceedings, Mr King observes that the matter has not proceeded very far. The pleadings have still not closed and none of the Defendants, as yet, has filed a Defence.

57 With respect to the nature of the litigation, Mr King points to features of the claim as pleaded and its background. Having regard to the matters alleged by the Plaintiff, he submits that the Plaintiff has suffered significant personal loss in not having tenure and in having to move from his home to secure employment. It is said that the Plaintiff’s health and reputation have suffered as a result of the actions of the Defendants. Mr King submits that there is both a public interest and a significant personal interest at stake in the litigation.

58 With respect to the conduct of the parties, he submits that it cannot be said that there is misconduct on the part of any of the parties.

59 Mr King addressed the consequences for the parties of the grant or refusal of the application for an extension of time. He submits that the prejudice to the Plaintiff in refusing to grant an extension of time is very substantial and that the effect on his rights would be harsh and unreasonable in the circumstances of the case.

60 He submits that a refusal of extension of time would mean that the Plaintiff is precluded from raising the TPA and FTA claims struck out by the Court on 4 September 2008. He submits that a gross injustice would flow to the Plaintiff if he was denied remedies under the TPA and FTA if they were, on a proper view of the law, otherwise available.

61 Mr King submits that, on the other hand, there is no relevant prejudice to the Defendants. At all time they have been aware that the Plaintiff wished to pursue his TPA and FTA claims and, in reply, his CRA claim as an answer to the Deed of Release.

62 With respect to the reason for delay in filing the Notice of Motion, Mr King points to Mr Lewis’ affidavit and the view taken by the Plaintiff that, on its proper interpretation, the judgment of Malpass AsJ did not preclude the bringing of fresh causes of action in place of those dismissed by his Honour. He submits that the Plaintiff acted on advice in proceeding as he did. He submits that, when it became clear that the Plaintiff’s view was not shared by the Court, the Plaintiff took immediate steps to appeal against the decision of Malpass AsJ. He submits that no blame can be attributed to the Plaintiff for not appealing in time. At worst, the Plaintiff has proceeded under a mistake as to the proper interpretation of the reasons of Malpass AsJ and, as soon as it became clear that the Court did not accept the Plaintiff’s view, he immediately applied to appeal from the judgment of Malpass AsJ which constituted an impediment from him bringing a claim based on the TPA, FTA and CRA.

63 Mr King submits that, in all the circumstances, it is appropriate or just that the extension of time be granted.

Submissions of the Defendants

64 Mr Izzo submits that the discretion to extend time will only be exercised where the Plaintiff can show that strict compliance with the rules will work an injustice on him: Gallo v Dawson at 480. In the present case, the Defendants submit that the history of the proceedings and the Plaintiff’s conduct of them indicates that there is no relevant injustice. Further, in the circumstances of the case, Mr Izzo submits that the grant of an extension of time would be contrary to the overriding objective of facilitating the just, quick and cheap resolution of the proceedings: s.56 Civil Procedure Act 2005. Mr Izzo submits that this is so for at least five reasons.

65 Firstly, he submits that the application is brought some time after the expiry of the time for bringing an appeal, where the time for appeal expired on 14 July 2008 and the appeal was not filed until 4 September 2008.

66 Secondly, he submits that the appeal was filed after the Plaintiff had already embarked on a course of seeking to overcome the summary dismissal of his TPA and FTA claims by amending his pleading. Before 4 September 2008, the Plaintiff had obtained leave to amend the pleading (on 20 June 2008), had served an amended pleading (on 18 July 2008), had engaged in correspondence with the Defendants as to whether the majority of the amendments were permissible (on 21 and 22 July 2008) and had defended a Notice of Motion brought by the Defendants seeking to strike them out (on 1 September 2008). Mr Izzo submits that, until the hearing of the Defendants’ Notice of Motion, there was little to indicate that the Plaintiff would appeal from the decision of Malpass AsJ, and his conduct of the proceedings plainly indicated the contrary.

67 Thirdly, Mr Izzo submits that the Plaintiff’s decision not to bring an appeal earlier was a deliberate one. He submits that this is a significant factor on the present application. Mr Izzo draws attention to Mr King’s written submission of 14 October 2008 (page 3, paragraph 4) where it was said that “initially leave was not sought as it was anticipated that the expense of an appeal could be avoided by pleading more particularly the causes of action as occurring in trade or commerce”. Mr Izzo submits that, having chosen that course, the Plaintiff must abide its consequences. The Plaintiff ought not now be granted the indulgence of revisiting his earlier decision not to appeal from the judgment of Malpass AsJ.

68 Mr Izzo points to paragraph 7 of the affidavit of Mr Lewis as a clear statement that it was “both unnecessary and inappropriate to appeal but to amend, and to plead clearly that the cause of action arose in trade or commerce” and that if “the Defendants again move to strike out, and that was successful, then we should appeal”. He submits that there was a deliberate decision taken by the Plaintiff, on legal advice, not to appeal from the decision of Malpass AsJ and that this consideration operates heavily against the Plaintiff on the present application: Pell v Hodges [2007] NSWCA 234 at [52]-[54].

69 Fourthly, Mr Izzo submits that, as a result of the course chosen by the Plaintiff until 4 September 2008, considerable court time was expended in determining whether the Plaintiff should be permitted to amend the Statement of Claim. The matter was argued at length on 1 September 2008 on the basis that the decision of Malpass AsJ was to be accepted: Curtin v University of New South Wales (No. 2) at [23]-[24]. If an appeal from the decision of Malpass AsJ were now to proceed, that time may be wasted. Mr Izzo submits that this is not just a matter of costs incurred by the parties. He points to s.56 Civil Procedure Act 2005 and the public interest in effective use of court time and resources.

70 Fifthly, Mr Izzo submits that the proceedings have progressed since 4 September 2008 and additional expense has been incurred by the parties. The Plaintiff applied to replead and has served a proposed amended pleading for this purpose. As a result, the Defendants have been put to the expense of considering the proposed amendments, preparing written submissions in relation to the application to replead and attending directions hearings relating to that application on 19 September 2008 and 17 and 22 October 2008. While these events were occurring, Mr Izzo submits that the Plaintiff’s appeal lay dormant, and not until 15 October 2008 was an attempt made by letter to revive it. In the meantime, on 19 September 2008, the Plaintiff had indicated to the Court that the appeal was not proceeding and was “just done … as a fall back” and the Court had made orders for the future conduct of the proceedings on that basis. Mr Izzo submits that, to permit the appeal now to be resuscitated, would lead to the time and expense devoted by both the Court and the parties to exploring the pleading issues since 4 September 2008 being thrown away.

71 Mr Izzo noted that the Defendants did not wish to make any submission concerning the prospects of success of the appeal. Rather, the Defendants point to other aspects of the application as standing in the way of the grant of an extension of time.

72 The Defendants submit that the onus lies on the Plaintiff to demonstrate prejudice giving rise to injustice so as to warrant the grant of the extension of time. He submits that the Defendants have suffered prejudice given the manner in which the Plaintiff has conducted the litigation since 13 June 2008 as a result of deliberate decisions made concerning the appropriate pathway to be followed. The Defendants submit that a grant of the extension of time would further prejudice them because of additional delay in the litigation which would necessarily follow.

73 Mr Izzo submits that, unlike many other cases, the Plaintiff would not be shut out of Court if the extension of time was refused. He has other causes of action which have been pleaded and which will proceed to trial.

74 Mr Izzo submits that, in all the circumstances of the case, the Plaintiff has not made out a case for the grant of an extension of time so as to displace the Defendants’ vested right to retain the judgment of Malpass AsJ.

Resolution of Competing Submissions

75 I am satisfied that the Plaintiff’s decision not to appeal from the decision of Malpass AsJ of 13 June 2008 was a deliberate one. The Plaintiff took the view, on legal advice, that the appropriate path was to replead the claim and not to appeal.

76 The Plaintiff maintained this stance even after the Defendants’ solicitors asserted by letter dated 21 July 2008 that the proposed amended pleading effectively replicated that which had been rejected by Malpass AsJ. In my view, it ought to have been apparent from that moment, and certainly from the time the Defendants’ Notice of Motion dated 31 July 2008 was served, that the argument on the Defendants’ Notice of Motion would proceed upon the basis (unless the Plaintiff sought to appeal from it) that the decision of Malpass AsJ was correct.

77 The hearing proceeded before me on 1 September 2008 upon that precise basis without any application or inkling that the Plaintiff would seek to appeal against the decision of Malpass AsJ. The Court reserved its decision until 4 September 2008.

78 On 2 September 2008, the Plaintiff foreshadowed for the first time, an intention to appeal from the decision of Malpass AsJ. Such a fundamental change of strategy in the litigation meant that, if it were to be allowed, either the hearing on 1 September 2008 was wasted or a further hearing would be required to proceed before me of an application to appeal which, if successful, would remove the substructure of the hearing which had proceeded on 1 September 2008.

79 As recorded above, I declined the Plaintiff’s application for an adjournment and proceeded to give judgment on the matter which had been argued on 1 September 2008.

80 From 4 September 2008 to 15 October 2008, the Plaintiff moved once again down the repleading pathway before changing direction to again press the application to extend time to appeal.

81 Has the Plaintiff established that injustice will result if he is refused the extension of time to appeal from the decision of Malpass AsJ? A number of propositions ought be expressed.

82 Firstly, the Defendants commence with a vested right to retain the judgment of Malpass AsJ. In this case, this is not merely because the 28-day period for appeal passed without such an appeal being lodged. In addition, and significantly, the Plaintiff took an active path in the litigation which was not consistent with the exercise of his right to appeal. He sought to amend the pleadings and to defend that position when the Defendants filed their Notice of Motion on 31 July 2008, with such a controversy to be determined necessarily upon the basis that the decision of Malpass AsJ was correct. This is a powerful and unusual feature of the present case.

83 Secondly, it is clear, on the evidence that a deliberate decision was taken not to appeal from the decision of Malpass AsJ. This is not a case where the Plaintiff and his lawyers did not turn their mind to the question of an appeal. Rather, consideration was given to that option, but it was decided to move down a different litigious pathway. It was a deliberate decision not to appeal with the perceived benefit to the Plaintiff of the avoidance of additional expense (see [67] above).

84 Thirdly, I accept that there has been some prejudice to the Defendants resulting from the Plaintiff proceeding down one pathway (to amend the pleadings) and not another (to appeal from the decision of Malpass AsJ). It is true that the Defendants have the benefit of my orders of 4 September 2008 striking out the challenged parts of the amended pleading and ordering the Plaintiff to pay the Defendants’ costs on an indemnity basis payable forthwith. However, Mr King did not submit that the costs order ought stand as a condition of a grant of an extension of time to appeal. During the course of submissions on 7 November 2008, the following was said (T9.22):

“KING: … The fourth point is really, the court time was used - of course the court time was used but orders for costs were made about that, it was not even mentioned that extra expenses were incurred. The defendants were not out of pocket and were not prejudice.

HIS HONOUR: Does that mean if leave were granted the plaintiff would not seek to discharge the costs orders made by him?

KING: No, I didn't say that. What I said was that on the state of things, on the state of things as they are the defendants have been protected all the way along and make no submission that they are prejudiced.”

85 I am satisfied that the Defendants have been required, as a result of the deliberate forensic decisions of the Plaintiff since 13 June 2008, to take steps in the litigation which would not have been required if the Plaintiff had proceeded to appeal against the relevant decision.

86 Fourthly, even since 4 September 2008, there has been prevarication on the part of the Plaintiff as to whether the application for an extension of time to appeal was to be pressed and, if so, when that was to occur. The Defendants have been drawn along a pathway which has not, I am satisfied, served to facilitate the just, quick and cheap resolution of the real issues in dispute in the litigation.

87 Fifthly, it is the case that the Plaintiff has other causes of action which he is able to press if the extension of time to appeal is not granted. That said, it is apparent that claims which had been advanced under the TPA and FTA constituted a significant part of the Plaintiff’s claim. If I refuse the application to extend time, then it is likely that the Plaintiff will not be able to advance these claims further, even if it be the case that Malpass AsJ was in error. My decision of 4 September 2008 proceeded upon the basis that the decision of Malpass AsJ was correct.

88 Mr King submits, and Mr Izzo does not dispute, that the Plaintiff has a reasonably arguable on appeal. I should proceed on the basis that the Plaintiff has a reasonably arguable appeal to advance, if permitted.

89 If the extension of time is refused, unless an appeal from my decision of 4 September 2008 can open the issue up for appellate consideration, the Plaintiff will not be able to challenge the decision of Malpass AsJ. In the context of this case, there is the risk that this may give rise to an element of injustice to the Plaintiff.

90 On the other hand, the Plaintiff has adopted a deliberate position since 13 June 2008 to conduct this litigation upon one basis, a course only varied after a full hearing on 1 September 2008 of the Defendants’ Notice of Motion. The courts ought not permit litigation to proceed in one direction, and then another, depending upon the way in which it is felt the litigious wind is blowing. The overriding purpose in s.56 Civil Procedure Act 2005 would not be served by such an approach.

91 The principles in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 1 must now be understood as operating subject to the statutory duty imposed upon the courts by s.56(2), which requires the Court, in mandatory terms, to give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings when exercising any power under the Act or UCPR. That statutory duty constitutes a significant qualification of the power of the Court: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29].

92 The manner in which the Plaintiff has conducted this litigation since 13 June 2008 has not facilitated the just, quick and cheap resolution of the real issues in dispute.

93 I have given consideration to the question whether an extension of time might be granted on conditions which could, in some way, serve to protect the position of the Defendants both as to costs and as to ensuring the speedy progress of the litigation. No conditions were proffered by Mr King which could serve to achieve such a purpose. As mentioned earlier (at [84]), Mr King declined to put a submission that the Defendants’ position as to costs could be protected as a basis for the Plaintiff being allowed to proceed belatedly down this second litigious pathway.

94 Having regard to the factors relevant to the exercise of discretion to extend time under rule 49.8(4) UCPR in the particular and unusual circumstances of this case, I have determined that the Plaintiff has not demonstrated that an extension of time ought be granted to him. I am not satisfied that the Plaintiff has demonstrated that the Defendants’ vested right to retain the judgment ought be displaced by an order extending time to appeal.

95 The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties: Gallo v Dawson at 480. In the circumstances of this case, and having regard to the obligations of the Court and the parties under the Civil Procedure Act 2005, the Plaintiff has not demonstrated that justice will be achieved between the parties by the grant of an extension of time.

96 The Plaintiff’s application for an extension of time to appeal from the decision of Malpass AsJ on 13 June 2008 is refused.

97 I dismiss the Plaintiff’s application for an extension of time as contained in paragraph 2 of the Notice of Motion filed 4 September 2008.

98 At present, I see no good reason why costs should not follow the event. However, at the conclusion of the hearing, Mr King sought an opportunity to be heard on the question of costs whatever the outcome of the Plaintiff’s application. Accordingly, I will hear the parties on costs.

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